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RENDERED:
SEPTEMBER 26, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-000414-MR & 2001-CA-000456-MR
WAL-MART STORES, INC.
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 97-CI-00068
LINDA H. WILLIAMS
AND
APPELLEE/CROSS-APPELLANT
NO. 2001-CA-000454-MR
LEE HUDDLESTON
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 97-CI-00068
WAL-MART STORES, INC.
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON, AND SCHRODER, JUDGES.
DYCHE, JUDGE.
This matter involves a claim by appellee Linda
Williams that appellant Wal-Mart Stores, Inc. discriminated
against her on the basis of age under the Kentucky Civil Rights
Act, KRS Chapter 344.
After a two-day jury trial, the jury
returned a verdict in favor of Williams in the amount of
$539,237.00.
Wal-Mart hired Williams in July of 1986, when Williams
was forty-six years of age.
Mart for nearly ten years.
She worked as a cashier for WalThe genesis of this case occurred on
October 5, 1995, when Williams took a gallon of distilled water1
from the front of the store and drank from it without first
paying for it.
Jennie Gray, the Customer Service Manager, saw
Williams take the water.
According to Williams’s testimony, she
believed that Gray had given her permission to take the water
because Gray had seen her take it and then allowed her to go on
break and take the water without paying for it.
Gray denied at
trial having given Williams permission because Gray did not have
the authority to do so.
Either way, Gray did not stop Williams
from taking the water and did not immediately report this
incident to any higher level managers.
At the end of her shift,
Williams paid for the water.
On October 6, 1995, Williams took another gallon of
distilled water from the front of the store to the break room
1
Williams needed to drink sodium-free water due to problems with high blood
pressure.
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before paying for it.
Gray and Diane Smith, a Wal-Mart
associate, witnessed this.
Gray and Smith brought the situation
to the attention of Joyce Bosse, an assistant manager at that
time.
Following the policy of Wal-Mart, Bosse called the area
loss prevention supervisor, Joe Medina, to report the incident.
Medina told her to watch the situation.
Williams was observed drinking the water in the break
room.
At the end of the day, Williams left the partly consumed
gallon of water in the break room and left for the day without
paying for it.
Again on the following day, October 7, 1995, after
finishing the partly consumed gallon of water from the previous
day and throwing away the empty container, Williams took another
gallon of water from the front of the store.
Smith reported
this to Bosse, who called Medina a second time to see how she
should proceed in handling the matter.
At this time, Williams
had not paid for October 6 or the October 7 gallons of water.
The evidence is undisputed that Medina was the
decisionmaker regarding the situation.
Medina told Bosse that
if Williams could not produce receipts for the water, Bosse was
to terminate Williams.
matter.
Bosse was given no discretion in the
And, according to the consistent and undisputed
evidence at trial, employees are not given a warning or coached
in these situations.
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The evidence was undisputed that Wal-Mart has a very
strict policy against employees taking merchandise without first
paying for it regardless of the price of the item.
The evidence
was likewise uncontroverted that violation of this policy would
result in immediate termination of an employee and that all
employees were aware of this.
Wal-Mart also has stringent
policies regarding when employees are permitted to pay for
merchandise, including that no employee is allowed to pay for
merchandise while on the clock.
An employee is permitted to pay
for merchandise prior to the beginning of her shift, at the end
of her shift, or if she clocks out for lunch.
Food and drink
items may be purchased prior to consumption under these
policies; however, an employee is required to keep receipts with
such items.
At any time an employee may be required to show her
receipt for any Wal-Mart merchandise she has while in the store
or while leaving the store.
Williams was aware of these
policies.
Following Medina’s direction, Bosse called Williams
into a meeting in which Jim Merkling and Margaret Baker,
assistant managers, were also present.
Much time was spent
during the trial regarding how Williams was treated during this
meeting and regarding her assertions that she did not “steal”
anything.
However, the main issue is whether Williams violated
Wal-Mart’s policy regarding consuming merchandise without first
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paying for it and whether Wal-Mart treated her any differently
from similarly situated individuals based on her age.
When asked if she could produce receipts for the
water, Williams at first indicated that she could and began
looking through her smock for them.
However, it was undisputed
that prior to the meeting, Williams had only paid for the
October 5 gallon of water.
Williams relentlessly contended that
she did not and would not steal anything from Wal-Mart.
Nonetheless, no matter how her actions were characterized, they
were in clear violation of Wal-Mart’s policies, of which
Williams testified she was aware.
When Williams could not produce any receipts for the
water, she was given the choice of voluntarily resigning or
having the matter turned over to loss prevention.
According to
the trial testimony, to which Williams did not produce contrary
evidence, once a matter is turned over to loss prevention, it is
prosecuted if the employee has taken any merchandise without
first paying for it.
Although she alleges it was under the
pressure of being threatened with jail, Williams voluntarily
resigned.
After the meeting was over, Williams went through a
register and paid for the two gallons of water for which she
admitted she owed--the October 6 and October 7 gallons of water.
Six Wal-Mart employees consistently testified at trial that
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actions such as Williams would automatically result in
termination regardless of the surrounding circumstances.
In
spite of how she characterized her actions, Williams herself
testified that she knew the penalty for theft at Wal-Mart.
In applying the law to the facts of this case,
Kentucky’s Civil Rights statutes are modeled after federal ones,
and accordingly federal standards are used to evaluate
discrimination claims.
See Stewart v. University of Louisville,
Ky. App., 65 S.W.3d 536, 539 (2001); Meyers v. Chapman Printing
Co., Inc., Ky., 840 S.W.2d 814, 821 (1992).
In McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 793-94 (1973), the United
States Supreme Court established “‘the proper order and nature
of proof in [discrimination] actions . . . .’”
v. Zaring, Ky., 91 S.W.3d 583, 590 (2002).
Jefferson County
Under the McDonnell
Douglas burden-shifting framework, the plaintiff first must
establish a prima facie case of discrimination.
To establish a
prima facie case of age discrimination, a plaintiff bears the
burden of establishing by a preponderance of the evidence that:
(1) she was at least forty years old at the time of the alleged
discrimination; (2) she was subjected to an adverse employment
action; (3) she was qualified for the position involved; and (4)
she was ultimately replaced by a younger individual.
Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-43, (2000)
(assuming the applicability of the four-part test established in
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McDonnell Douglas to age discrimination cases lacking direct
evidence of discrimination). If a prima facie case is made, the
burden then shifts to the defendant to articulate a
nondiscriminatory reason for its actions.
The defendant bears
only the burden of production; the burden of persuasion remains
with the plaintiff at all times.
Weigel v. Baptist Hosp. of
East Tenn., 302 F.3d 367, 377-78 (6th Cir. 2002) (citing Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Once the defendant has articulated a nondiscriminatory reason
for its decision, the presumption of discrimination that arises
from the plaintiff’s prima facie case disappears.
The plaintiff
must then have the opportunity to show that the defendant’s
proffered explanation is merely a pretext for discrimination.
Id. at 378 (citing Burdine, at 255-56).
A plaintiff must
present sufficient evidence to support her conclusion that the
proffered reason was a pretext designed to hide discrimination.
In order to show pretext, the Sixth Circuit recognizes three
primary routes.
A plaintiff may show “‘either (1) that the
proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate [her] discharge, or (3) that
they were insufficient to motivate discharge.’”
Id. (citing
Manzer v. Diamond Shamrock Chemical Co., 29 F.3d 1078, 1084 (6th
Cir. 1994)) (quotation omitted in Weigel; emphasis added in
Manzer).
“‘[A] plaintiff’s prima facie case, combined with
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sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated,’ although such a
showing might not ‘always be adequate to sustain a jury’s
finding of liability.’”
Id. (citing Reeves, at 148) (alteration
in original).
Initially, we are troubled with whether Williams even
met her prima facie case in this matter.
She introduced into
evidence a listing of employees hired after her which included
younger employees and employees within the protected class.
She
did not, however, even attempt to establish which employee took
over her specific job duties or whether her duties were assumed
by a variety of individuals.
Nonetheless, because there were
younger employees hired after her and because Wal-Mart conceded
in its motion for summary judgment that Williams had met her
prima facie case, we will not reverse on this ground.
The burden thereafter shifts to Wal-Mart to articulate
a legitimate nondiscriminatory reason for its termination of
Williams.
Wal-Mart clearly met this burden at trial; it has a
zero tolerance policy against employees consuming or using any
merchandise before it has been purchased.
Further, Wal-Mart
presented evidence, unrebutted by Williams, that any violation
of this policy, regardless of cost or intent to pay at a later
time, would result in termination.
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Exceptions to this policy
are only given in emergency situations wherein a manager gives
prior approval.
Wal-Mart presented unrefuted evidence that
otherwise this policy is applied blindly across the board.
The burden shifts back to Williams to prove that the
stated reason was pretextual.
Williams offered no evidence
whatsoever at trial to rebut the reason given by Wal-Mart.
She
did not show that it was not based in fact, that it did not
actually motivate Wal-Mart or that it was insufficient to
motivate her discharge.
She offered nothing but her unsupported
allegations that she believed she had done nothing wrong in
taking the water because she intended to pay for it later.
Based on her reasoning, she concluded that age must have played
a factor in her termination.
However, Williams is compelled to
come forward with some evidence beyond her prima facie case
other than her own subjective unsupported beliefs.
She has
failed to do so.
Williams tried to buttress her allegation of age
discrimination by arguing that she did not get certain shifts of
work or that she was not allowed to “zone” very often at WalMart.2
She offered only her unsupported allegations that younger
employees were given this alleged preferential treatment, and
she failed to show how other employees were in any way similarly
2
Zoning involves going out on the floor to straighten merchandise and assist
customers as necessary.
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situated to her as explained in Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
Further, we are not convinced that her allegations
even rise to being treated unfairly on the basis of age even if
she could prove them.
Pursuant to the Sixth Circuit’s
direction, a “materially adverse” employment action involves a:
change in the terms and conditions of
employment [and] must be more disruptive than
a mere inconvenience or an alteration of job
responsibilities. A materially adverse
change might be indicated by a termination of
employment, a demotion evidenced by a
decrease in wage or salary, a less
distinguished title, a material loss of
benefits, significantly diminished material
responsibilities, or other indices unique to
a particular situation.
Wilson v. Dana Corp., 210 F. Supp. 2d 867, 884 (W.D. Ky. 2002)
(citing Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th
Cir. 1999)(quoting Crady v. Liberty Nat’l Bank & Trust Co. of
Ind., 993 F.2d 132, 136 (7th Cir. 1993))).
“These factors are
to be evaluated objectively, and not from the subjective
interpretation of the complainant.”
Id. (citing Kocsis v.
Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th
Cir. 1996)).
First, it is not clear that the circumstances alleged
by Williams were actionable under the above analysis.
they are only de minimis.
Instead,
And, second, she offered no evidence
whatsoever other than her own “subjective interpretation” of the
situation.
Hence, we find no reason to rely on these
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allegations to buttress Williams’s faltering discrimination
case.
Even more problematic to Williams’s case is the
undisputed fact that Joe Medina was the sole decisionmaker, and
there was no evidence he knew Williams or her age.
Medina was
the regional loss prevention supervisor and was only present at
particular Wal-Mart stores sporadically.
Bosse carried out
Medina’s instructions, which were to terminate Williams at the
meeting if she could not produce receipts for the water.
was given no discretion in the matter.
Bosse
The focus of the inquiry
should be on the knowledge and motivation of the decisionmaker
and not the knowledge of the employee or nondecisionmakers.
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Because
Medina, the sole decisionmaker, did not know Williams or her
age, Williams’s case must fail because she lacks any evidence of
intentional discrimination.
In summary, Williams presented no evidence to rebut
Wal-Mart’s legitimate reason for its decision.
While it may
appear harsh to make such a decision based on the surrounding
facts, Wal-Mart presented undisputed evidence that it applies
its policies to all employees regardless of age or
circumstances.
It is neither for the courts nor for jurors to
determine whether the decision was right or wrong, so long as a
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business judgment decision was not made for a discriminatory
reason.
We can only conclude that the jury was swayed by the
unfortunate circumstances surrounding Williams’s life at the
time she was terminated.
Her son was dying of cancer and she
had had several illnesses herself.
Based on the lack of
evidence of pretext, we conclude that the jury’s verdict was
flagrantly against the evidence and that it was a result of
passion.
See, e.g., Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18
(1998) (citing NCAA v. Hornung, Ky., 754 S.W.2d 855 (1988)).
Accordingly, there is no reason to review the remaining issues
raised in this appeal, or the cross-appeal.
The judgment of the
trial court is hereby reversed, and the cross-appeal is moot.
SCHRODER, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING:
I respectfully dissent.
The Majority Opinion has invaded the province of the jury by
weighing the evidence presented at trial.
This case involves
numerous issues of material fact which were properly submitted
to the jury by the trial court.3
On appeal the Majority has
failed to consider the evidence in the light most favorable to
the prevailing party;4 instead, the Majority in many instances
3
Rogers v. Kasdan, Ky., 612 S.W.2d 133, 135 (1981).
4
Davis v. Graviss, Ky., 672 S.W.2d 928, 933 (1984).
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has summarized the evidence pertaining to material issues of
fact in the light most favorable to the appellant.
Williams testified that when she used the bottled
water while at work she followed Wal-Mart’s employment policy by
obtaining permission from her supervisors to use the distilled
water for medical purposes while she was working and by
obtaining permission to pay for it at the end of her workshift.
Thus, there was substantial evidence to support Williams’s
contention that she was in full compliance with her employer’s
policies and Wal-Mart’s threats of criminal prosecution and
termination of her employment were unjustified.
Williams claims that the position Wal-Mart took in
accusing her of violating company policy by purchasing the
bottled water while she was at work was merely a pretext for
terminating her.
Williams presented evidence which showed the
extreme measures the members of Wal-Mart management went to in
their attempt to catch her stealing the distilled water, and
their efforts at coercing a confession and resignation from her
under the threat of criminal prosecution and imprisonment.
Thus, the jury was presented with evidence that Wal-Mart did not
consistently enforce its alleged zero-tolerance policy of
prohibiting the purchase of merchandise by employees while at
work, but that Wal-Mart instead wrongfully accused Williams of
theft.
There was sufficient evidence for the jury to find that
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these accusations of theft and threats of criminal prosecution
by Wal-Mart were a mere pretext and that Wal-Mart’s true purpose
was to force Williams to resign her position.
The jurors heard the testimony of all the major
participants and it was within their purview to judge the
credibility and motives of the witnesses.5
They were entitled to
use their common sense in judging the credibility of the members
of Wal-Mart’s management in explaining the reasons for the
actions they took.
As Williams observed in her brief, after
hearing the testimony concerning Williams taking the water and
not paying for it, and the surveillance of her undertaken by the
members of Wal-Mart’s management, the jury was left with one of
three conclusions:
(1) Williams was stupid; (2) Wal-Mart’s
management was stupid; or (3) Wal-Mart’s management had a hidden
agenda.
Obviously, the jury chose the latter conclusion.
This
conclusion was reasonable based upon the evidence and the
reasonable inferences the jury could draw from that evidence.
The Majority Opinion’s summary of the evidence would be
appropriate if the jury had found for Wal-Mart and the purpose
of the opinion was to demonstrate that there was sufficient
evidence to support a finding in favor of Wal-Mart.
Unfortunately for Wal-Mart, the evidence was in dispute and the
jury chose to accept Williams’s version of the events.
5
The
Kentucky & West Virginia Power Co. v. Elliott, 310 Ky. 496, 499, 220 S.W.2d
964 (1949).
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Majority Opinion inappropriately summarizes the evidence most
favorable to Wal-Mart instead of the evidence most favorable to
Williams.
The following is a summary of the evidence in the
light most favorable to Williams:
Williams told Gray, her
supervisor at Wal-Mart, that she had a serious medical condition
involving her heart rate and high blood pressure which required
her to take medication that had been prescribed by her
physician.
Williams was required to take this medication during
her workshift at rather precise intervals.
Because of
Williams’s high blood pressure, her doctor told her to take the
medication with sodium-free water.
When Williams had previously
brought sodium-free water to work and left it in the employees’
break room, it was either drank or thrown out by other
employees.
Williams decided that she would purchase the
distilled water from Wal-Mart on an as-needed basis so she would
have the water when she needed to take her medicine.
Williams
was aware of Wal-Mart’s policy which prohibited an employee from
purchasing merchandise while on duty.
Therefore, she asked for
and received permission from her supervisor, Gray, to take a
bottle of water off the shelf during her workshift, to use the
water to take her medication, and to pay for the water at the
end of her workshift.
A written record that Gray made
concerning the fact that Williams had spoken to her about her
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need to purchase the distilled water was introduced as evidence.
While Gray denied giving Williams such permission, it is worth
noting that Gray also testified that she was not authorized by
Wal-Mart to give Williams such permission.
At the end of
Williams’s workshift on October 5, 1995, she took the empty
bottle of water through a check-out line and paid $0.58 for it.
Members of Wal-Mart’s management watched Williams as she paid
for the bottle of water because they suspected her of stealing
the water.
However, none of the members of Wal-Mart’s
management stopped Williams on October 5 to inform her that she
was in violation of Wal-Mart’s policy by using the bottle of
water, that had not been purchased, while she was working.
While members of Wal-Mart’s management insisted in their
testimony that (1) Wal-Mart had a very strict policy against an
employee using any merchandise regardless of price without first
paying for it; (2) that this zero-tolerance policy would result
in immediate termination; and (3) that all employees were aware
of this policy, some members of management failed to enforce the
policy when they did not take any action against Williams for
using the bottle of water on October 5 before it was purchased.
It was reasonable for the jury to infer from this inaction by
the members of Wal-Mart’s management that either it did not have
a zero-tolerance policy, Williams had been given permission to
use the bottled water before it was purchased as a medical
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exception to the policy, or Wal-Mart suspected Williams of the
much more serious infraction of employee theft and its
management team was waiting for the opportunity to catch
Williams in a theft.
As should be evident from this brief summation of the
evidence most favorable to Williams, there were contested issues
of fact at trial that were properly left for the jury to decide.
Based upon the evidence presented that was favorable to
Williams, it was not unreasonable for the jury to determine that
Wal-Mart’s stated reason for asking for Williams’s resignation
was a mere pretext for a discriminatory motive.
Williams
presented sufficient evidence in support of her claims of
disparate treatment due to her age which resulted in her
receiving less desirable job assignments and lower paying
positions with less opportunity for advancement.
Accordingly, I
would affirm the Barren Circuit Court’s judgment in favor of
Williams.
BRIEF FOR APPELLANT/
CROSS-APPELLEE WAL-MART
STORES, INC.:
Elizabeth Ullmer Mendel
Kathryn A. Quesenberry
Erin M. Roark
Woodward, Hobson & Fulton,
L.L.P.
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT LINDA
H. WILLIAMS AND APPELLANT LEE
HUDDLESTON:
Lee Huddleston
Huddleston & Reed
Bowling Green, Kentucky
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ORAL ARGUMENT FOR APPELLANT/
CROSS-APPELLEE WAL-MART
STORES, INC.
Kathryn A. Quesenberry
Woodward, Hobson & Fulton,
L.L.P.
Louisville, Kentucky
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